Jesus Sanchez, Jr. v. State

• Court: Court of Appeals of Texas
• Decided: April 19, 2007
• Docket: 13-06-00178-CR
• Status: Published

Opinion

NUMBER 13-06-178-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

JESUS SANCHEZ, JR., Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 347th District Court

of Nueces County, Texas

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Garza

Memorandum Opinion by Justice Rodriguez

Appellant, Jesus Sanchez, Jr., appeals from his conviction of murder. The jury found appellant guilty, sentenced him to life in prison, and fined him $10,000. Concluding that "there are no arguable grounds to be advanced on appeal," appellant's counsel filed a brief in which he reviewed the merits, or lack thereof, of the appeal. We affirm.

I. Compliance with Anders v. California

Appellant's court-appointed counsel filed an Anders brief in which he has concluded that there is nothing that merits review on direct appeal. Anders v. California, 386 U.S. 738, 744 (1967). Appellant's brief meets the requirements of Anders. Id. at 744-45; see High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. [Panel Op.] 1978). In compliance with Anders, counsel presented a professional evaluation of the record and referred this Court to what, in his opinion, are all issues which might arguably support an appeal. See Anders, 386 U.S. at 744; Currie v. State, 516 S.W.2d 684, 684 (Tex. Crim. App. 1974); see also High, 573 S.W.2d at 812. Counsel has informed this Court that: (1) he has diligently read and reviewed the record and the circumstances of appellant's conviction, including the facts of the case, theories of death presented, limitations on a defense theory raised, objections made and not made, and the trial court's responses; (2) he believes that there are no arguable grounds to be advanced on appeal; and (3) he forwarded to appellant a copy of the brief filed in support of his motion to withdraw with a letter informing appellant of his right to review the record and to file a pro se brief. See Anders, 386 U.S. at 744-45; see also Stafford v. State, 813 S.W.2d 503, 509 (Tex. Crim. App. 1991) (en banc); High, 573 S.W.2d at 813. Counsel has also informed this Court that he mailed a copy of the record to appellant.

II. Pro Se Brief

Appellant filed a pro se brief urging three issues. Appellant complains of the sufficiency of the evidence to prove that he committed the offense of murder. He also contends that counsel was ineffective when counsel allegedly failed to interview and investigate an alibi witness who appellant claims was vital to his defense. ⁽¹⁾

III. Independent Review

The Supreme Court advised appellate courts that upon receiving a "frivolous appeal" brief, they must conduct "a full examination of all the proceedings to decide whether the case is wholly frivolous." Penson v. Ohio, 488 U.S. 75, 80 (1988); see Ybarra v. State, 93 S.W.3d 922, 926 (Tex. App.-Corpus Christi 2003, no pet.). Accordingly, we have carefully reviewed the record and have found nothing that would arguably support an appeal. ⁽²⁾ See Bledsoe v. State, 178 S.W.3d 824, 826 (Tex. Crim. App. 2005); Stafford, 813 S.W.2d at 509. We agree with counsel that the appeal is wholly frivolous and without merit. See Bledsoe, 178 S.W.3d at 827-28 ("Due to the nature of Anders briefs, by indicating in the opinion that it considered the issues raised in the briefs and reviewed the record for reversible error but found none, the court of appeals met the requirements of Texas Rule of Appellate Procedure 47.1.").

IV. Conclusion

The judgment of the trial court is affirmed. Additionally, appellant's counsel's motion to withdraw as counsel for appellant supported by the brief was carried with the case on December 21, 2006. See Anders, 386 U.S. at 744. Having affirmed the judgment, we now grant counsel's motion to withdraw. We order counsel to notify appellant of the disposition of this appeal and of the availability of discretionary review. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997) (en banc) (per curiam). NELDA V. RODRIGUEZ

Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and

filed this 19th day of April, 2007.

1. In his pro se brief, appellant provided only unsupported contentions. Thus, appellant's briefing was inadequate. See Tex. R. App. P. 38.1(h) (setting out that we will only consider contentions that are supported by clear and concise arguments with appropriate citations to authorities and to the record).

2. Although appellant's attempt at a direct appeal has been unsuccessful, he is not without a potential remedy. Challenges requiring development of a record to substantiate a claim such as ineffective assistance of counsel may be raised in an application for writ of habeas corpus. See Tex. Code Crim. Proc. Ann. art. 11.07 (Vernon 2005); Ex parte Varelas, 45 S.W.3d 627, 630 (Tex. Crim. App. 2001); Cooper v. State, 45 S.W.3d 77, 82 (Tex. Crim. App. 2001); Ex parte Torres, 943 S.W.2d 469, 476 (Tex. Crim. App. 1997). An application for writ of habeas corpus relief would "provide an opportunity to conduct a dedicated hearing to consider the facts, circumstances, and rationale behind counsel's actions at . . . trial." Thompson v. State, 9 S.W.3d 808, 814-15 (Tex. Crim. App. 1999).